Opinion
No. 32294
Decided July 12, 1950.
Habeas Corpus — Not substitute for appeal — Not available to question validity of sentence, when — Fine and imprisonment claimed in excess of maximum prescribed by law.
IN HABEAS CORPUS.
The petitioner has instituted in this court a proceeding in habeas corpus to obtain his release from the Cuyahoga county jail, to which he was committed after having been found guilty of contempt of court.
Petitioner alleges that the commitment was pursuant to an unlawful and unauthorized sentence whereby he was ordered to serve six months in jail and pay a fine of $1,000 and costs for an offense for which Section 12142, General Code, provides a maximum sentence of imprisonment for ten days and a fine of not to exceed $500; that the Court of Appeals, on appeal, affirmed the judgment and sentence; and that he has paid to the clerk of courts the sum of $500, has been imprisoned for more than ten days, and, by reason thereof, has fulfilled the maximum legal sentence prescribed by law.
The jurisdiction of the court to sentence for contempt is not questioned but it is claimed the sentence is excessive and therefore erroneous.
Mr. J. Frank Azzarello and Mr. Alan Meltzer, for petitioner.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Saul S. Danaceau and Mr. John J. Mahon, for respondent.
A proceeding in habeas corpus cannot be used as a substitute for the remedy of appeal ( Ex parte Elicker, 117 Ohio St. 500, 159 N.E. 478), nor can it be employed as a remedy by a person who has been convicted of a criminal offense and subjected to a fine and imprisonment which he claims to be in excess of the maximum prescribed by law ( Ex parte Van Hagan, 25 Ohio St. 426, 432).
The petitioner having pursued the wrong remedy, we do not consider the validity of the sentence.
The relief prayer for is denied.
Petitioner remanded to custody.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.